Iyman v Natal Witness Printing & Publishing Co (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Page J
• Judgment Date: 21 June 1991
• Hearing Date: 27 May 1991
• Court: Natal Provincial Division

A Page J:

The plaintiff in this matter sues the defendant for payment of the amount of R25 000, being damages allegedly suffered by the plaintiff as a result of the publication by the defendant in the Natal Witness newspaper of certain defamatory statements on 6 and 8 November 1989. The defendant is admittedly the owner and publisher of the newspaper which B circulates in the Natal Province and in particular in the areas of Pietermaritzburg, Hammarsdale, the Natal Midlands, Northern Natal, Pinetown and Durban. The average circulation of the paper for the six months' period, including November 1989, was 26 927 copies per day; and since most readers of the newspaper purchased it by subscription, there was not a significant variation in that figure from day to day over that period. C

It is alleged in the particulars of claim and not disputed that the plaintiff is the son of one John Iyman, who stood as a candidate for election to the House of Delegates in the constituency of Hammarsdale in the parliamentary election held during 1989. It is further common cause that he was defeated in that election. D

It is also common cause that the Iyman family owns and operates a business called The Chicken Inn at Hammarsdale. Those taking part in its operation include Mr John Iyman, the plaintiff, and the plaintiff's brother, Jeye Iyman.

The two articles giving rise to the action are annexed to the E particulars of claim marked 'A' and 'B' respectively. The first - that published on 6 November 1989 on p 3 of the Natal Witness - consists of a report under the headline 'Man was assaulted "for not voting for candidate" '.

The report continues as follows:

'Witness Reporter

F A Cliffdale man says he was beaten up yesterday by the son of a candidate in this year's general election, allegedly because he did not vote for the man's father.

Mr Krishna Govender (39) said he went into the Chicken Inn in Hammarsdale, which is owned by Mr J V Iyman, who was defeated by Mr T L Gouden in the recent general election in Cliffdale.

He asked the cashier, one of Mr Iyman's sons, if he could use the phone, and was told to wait. G

Mr Govender said the son then approached him and punched and kicked him. He suffered injuries to his jaw, his chest and a tooth.

Mr Govender said he had reported the incident to the Camperdown police. A police spokesman confirmed last night that Mr Govender had laid an assault charge.'

H To the left of the report appears a photograph of Mr Govender above the caption 'Mr Krishna Govender'. A contusion is clearly visible on his right cheek and there appears to be some swelling above the left eye. An enlarged print of the original photograph was handed in during the trial on which certain marks on the front of Mr Govender's shirt are visible, but these cannot be seen in the print accompanying the newspaper report. I

The second report - that which appeared on 8 November - was published under the headline 'Charge laid against man "assaulted" by ex-MP's son', and reads as follows:

'Former House of Delegates MP for Camperdown, Mr John Iyman, has laid a charge of crimen injuria against a man who has charged his son with J assault, according to Hammarsdale Police.

Page J

A Mr Iyman laid the charge against Mr Krishna Govender of Cliffdale.

This follows a charge laid by Mr Govender against Mr Jefferson Iyman in which Mr Govender claims he was assaulted for not voting for Mr John Iyman in the recent election. WR.'

It is alleged by the plaintiff that the second article referred B specifically to him and that the first article also referred to him, alternatively, was understood by readers of the two articles and by the persons who knew the plaintiff and his father to refer to him.

The particulars of claim continue as follows:

'7.

Annexures "A" and "B" are defamatory of the plaintiff in that they state that

(i)

C he assaulted one Govender;

(ii)

the reason why the plaintiff assaulted the said Govender was because the said Govender did not vote for the plaintiff's father during the parliamentary elections;

(iii)

the said Govender laid a charge of assault against the plaintiff.

D . . .

9.

The plaintiff

(a)

never assaulted the said Govender whether for the reason alleged or at all;

(b)

was never charged with assault either by the said Govender or at all.

10.

E By reason of the publication by the defendant of the said defamatory statements, the plaintiff's good name and reputation has been impaired.'

The defendant in its plea admitted that the statements referred to the plaintiff, but denied that they were defamatory of him. In the F alternative, the defendant pleaded as follows:

'5.2.1

On Sunday, 5 November 1989 plaintiff assaulted one Govender.

5.2.2

Plaintiff assaulted the said Govender essentially because the said Govender did not vote for plaintiff's father during the parliamentary elections.

5.2.3

Govender laid a charge of assault against the plaintiff, G alternatively reported the said assault to the South African Police.

5.2.4

In the premises the statements complained of contained in annexures "A" and "B" to the plaintiff's particulars of claim are true, alternatively are substantially true in every material part.

5.2.5

The publication of the said statements complained of was in the H public interest in that they relate to

5.2.5.1

the son of a local businessman;

5.2.5.2

the son of a public personality who was seeking political office;

5.2.5.3

an election matter;

5.2.5.4

a current event.'

I In reply to a request for further particulars for trial, the defendant alleged, inter alia, that the plaintiff struck Govender with a clenched fist on the left eye; and that Govender had made a request to use the telephone and the plaintiff's brother, when the plaintiff directed the request to him, stated that Govender had not voted for their father, and that he could not use the telephone. The plaintiff then assaulted J Govender.

Page J

A Although it was denied on the pleadings that the reports were defamatory, the defendant admitted at the stage of argument that they were indeed defamatory of the plaintiff in that they imputed to him an assault and conduct which was reprehensible (namely committing the assault for the reasons alleged) and that he had been charged as a result thereof. It was also conceded that the absence of animus B injuriandi was not available to the defendant as a defence either because of its absolute liability or because the presumption of animus injuriandi flowing from the publication of the defamatory matter had not been rebutted. The sole issue remaining for decision on the question of whether the defendant was liable for damages was whether the publication C was justified on the grounds that the statements published were true and were published for the public benefit. This situation immediately raised the vexed question of the nature of the onus resting upon a defendant relying upon this defence.

Counsel for the plaintiff has understandably contended that the onus rests upon the defendant to establish the defence on a balance of D probabilities, whereas counsel for the defendant has argued that there rests upon his client no more than a burden to adduce evidence in rebuttal ('weerleggingslas') in the sense that, once he has placed before the Court evidence to render it as probable as not that the publication was the truth and in the public interest, his defence must succeed.

The leading authority for the latter proposition is the decision in E Suid-Afrikaanse Uitsaaikorporasie v O'Malley 1977 (3) SA 394 (A). Prior to that decision, the Appellate Division had dealt with the defence of privilege (in the sense of defences negating unlawfulness) on the footing that the onus to be discharged was a full onus of proof on a preponderance of probability. (See Joubert and Others v Venter 1985 (1) SA 654 (A) at 696E-H, where the most important of this line of F decisions are referred to.) In O'Malley's case, however, the learned Chief Justice, after pointing out that in our law the publication of defamatory matter gave rise to a presumption that it was published both...