De Klerk v Union Government

• Jurisdiction: South Africa
• Citation: 1958 (4) SA 496 (T)

De Klerk v Union Government
1958 (4) SA 496 (T)

1958 (4) SA p496

Citation	1958 (4) SA 496 (T)
Court	Transvaal Provincial Division
Judge	Cillié J
Heard	April 9-10, 1958; June 13, 1958
Judgment	September 30, 1958

Flynote : Sleutelwoorde A

Defamation — Privilege — Defence of character against attack — Privilege covers statement made of third party, if relevant — Statement in periodical that plaintiff sympathetic towards a named Communist — Plaintiff not a Communist nor inclined to Communism — Article capable of referring to plaintiff — References to B plaintiff not covered by the privilege — Not published in good faith.

Headnote : Kopnota

If a privileged occasion arises in which one man defends his character against attack by another, the protection afforded by the privilege covers a defamatory statement made of a third person if that statement is relevant to the subject matter in respect of which the occasion is privileged.

Plaintiff had sued for damages for defamation arising out of an article C published in a periodical by the State Information Officer under the heading 'Communists in South African Trade Unions'. Statements in the article indicated, inter alia, that the defendant was ridding the trade unions of Communists. It then mentioned a particular trade union of which the plaintiff was a trustee and a member of the executive council. The statement complained of by the plaintiff stated that 'although the former secretary was revealed as a Communist and ordered to resign from his post, the control of the union still remained in the hands of men D sympathetic to this former secretary. Accordingly an anti-Communist group was set up within the union . . . to overthrow the executive council.' Plaintiff gave evidence that she was not a Communist and was not inclined to Communism.

Held, that the article was capable of referring to the plaintiff.

Held, further, that the statement was defamatory.

Held, further, that the references to the plaintiff were not protected because they did not fall within the scope of the privilege attaching to the occasion.

E Held, further, that in any event the statements complained of had not been made in good faith.

Held, accordingly, that the plaintiff was entitled to damages.

Case Information

Action for damages. The facts appear from the reasons for judgment.

N. E. Rosenberg, Q.C., (with him. S. Kentridge), for the plaintiff: The issue is whether the article on a proper interpretation refers to each individual comprising the executive, or whether it is merely a criticism of the general policy of the executive. See Knupffer v London Express Newspapers Ltd., 1943 K.B. 80 at pp. 81, 83 - 4; 1944 A.C. 116 at pp. 119 - 123; Vermaas v Pelser, 1951 (1) SA 752 at pp. 759 - G 761; Pienaar v Argus Printing Co., 1956 (4) SA 310 at p. 319. An attack made on a body of persons without qualification will be taken to be an attack on each member if the body is relatively small with a completely ascertainable membership. See Vermaas v Pelser, supra; Visse v Wallach's Printing Co., 1946 T.P.D. 441 at p. 448; Pienaar v. H Pretoria Printing Works, 1906 T.S. 805 at p. 816. Examples of attacks on a body of persons where each was held entitled to sue: Le Roux v Cape Times Ltd., 1931 CPD 316 at p. 326 (members of a jury); Hertzog v Ward, 1911 OPD 118 at pp. 123 - 124; 1912 AD 62 (medical council); Gray v Young, 1940 E.D.L. 82; Young v Kemsley, 1940 AD 258 at p. 273 (liquor licensing board); Apthorpe v Drew, 1908 O.R.C. 88 (land board); Browne v Thompson, 1912 S.C. 359 (ecclesiastical F

1958 (4) SA p497

authorities); Macphail v Macleod, (1895) 3 S.L.T. 91 (presbytery); Foxcroft v Lacy, (1614) Hobart 89; 80 E.R. 239 (aspersion on 17 defendants). See also the American examples given in Gatley (4th ed.), pp. 115 - 116; and cf. Spencer Bower, pp. 273 - 4; McKerron (3rd ed.), pp. 211 - 212. In the present case (a) the body is small and A completely ascertainable; (b) the words used show that it is the members of the executive who are attacked. It is not necessary to lead any evidence that any reader in fact knew the plaintiff to be a member of the executive. See van Buskirk v Broms, 1937 T.P.D. 395 at p. 399; Hough v London Express Newspapers Ltd., 1940 (2) K.B. 507 at pp. 513 - B 14, 518. It should be remembered that publication in a newspaper is publication to the world. African Life v Robinson & Co., 1938 NPD 277 at pp. 296 - 7, 299 - 300. However evidence of any reader of the article may be led. Nasionale Pers v Long, 1930 AD 87 at p. 98; Sachs v Werkerspers, 1952 (2) SA 261 at p. 270 and pp. 281 - 2.

C A defamatory statement is one 'which tends to lower the plaintiff in the estimation of right-thinking persons generally'. Smith v Elmore, 1938 T.P.D. 18 at p. 21; Conroy v Stewart Printing Co. Ltd., 1946 AD 1015 at p. 1018. An imputation of Communism or sympathy with Communism is in the present state of opinion defamatory, the more so in the light D of Act 44 of 1950. See especially sec. 17 bis. Cf. Gatley (4th ed.) p. 26; Venter v Wilcocks (W.L.D. 22.8.51 (not reported) and (A.D. 11.12.51 (not reported)); Spanel v Pegler, 171 A.L.R. 699; Sachs v Voortrekkerpers, 1942 W.L.D. 99 at pp. 102, 107, 113. In so far as public opinion is relevant, evidence can be led, although the Court (as a jury) should take judicial notice of the state of public feeling on E Communism. See Venter v Wilcocks, supra. The defendant's own publication (in this and other issues) continually refers to the subject. These references are admissible against the defendant. See Sachs v Werkerspers Bpk., 1952 (2) SA 261 at pp. 263 - 264. These references also show the seriousness of the imputation.

Damages for defamation include a penal element. Sachs v Voortrekkerpers F Bpk., 1942 W.L.D. 99 at p. 121. On the quantum see that case, Sachs v du Preez, 1946 W.L.D. 94, and Sachs v Werkerspers, 1952 (2) SA 261 at pp. 285 - 286. It is true that plaintiff was not singled out as Sachs was in those cases; but (a) the source of the publication lends great weight to the attack; (b) the judgment of NESER, J., shows that the G article was an irresponsible and gratuitous attack on the members of the executive; (c) notwithstanding that judgment, no apology has been offered, nor has any correction been published; (d) the article shows not objective reporting such as one would expect in an official publication, but hostility and malice. As an example of substantial damages for a small but select publication, see Alexander v Jokl, 1948 H (1) P.H. J.6. The element of political controversy which reduced the damages in Pienaar v Argus Printing Co., 1956 (4) SA 310, is not and cannot be present. It is true that the plaintiff's position is not shown to have been affected. But the failure of a defamatory attack is not a mitigating factor. Sachs v Werkerspers Bpk., supra at pp. 284 - 285.

1958 (4) SA p498

The general principle on which a claim of privilege arises is conveniently stated in Holzen v Woollwright, 1928 T.P.D. 5 at p. 9. The question is whether there exists a moral, social or legal duty to speak. This question must be answered by the Court, which must strike a balance A between the public interest on the one hand and the individual's right to reputation on the other. See also De Waal v Ziervogel, 1938 AD 112 at pp. 120 - 2. The particular form of privilege claimed in this case is the privilege which a person has of defending himself against imputations on his character. This form of privilege is recognized in B English law. See Laughton v Bishop of Sodor and Man (1872), L.R. 4 P.C. 495; Adam v Ward, 1917 A.C. 334. In South African law it is also recognised. See Rhodes University College v Field 1947 (3) SA 437 (AD) at pp. 463 - 4. The authorities which refer to the right to reply to an attack on oneself consistently refer to the right to counter-attack the person who has originally made the attack and not to C attacks on third persons. See, for example, Gatley, 4th ed., pp. 266, 268, 269; Odgers, 6th ed., p. 241. Similarly, de Villiers on Injuries, p. 214; and Wilkinson v Trevett and Others, 1922 CPD 393. Consequently, therefore, one is not entitled to attack a third person in replying to an attack upon oneself, see Nevill v Fine Arts & General D Ins. Co., 1895 (2) Q.B. 156 at p. 170. There seems to be no ground of public policy to allow an attack on a third person who has been silent and who has taken no part in any attack on the defendant. In such a case the defendant should be called upon to justify the imputation. There are two cases in which the privilege of replying to an attack was held to extend to an attack on a third person. See Yates v MacRae, 1929 T.P.D. E 480, and Jopo v Johnstone, 1942 S.R. 107. Privilege is not required to cover true statements. It does not seem to be in the public interest that a Government, through its multitude of officials and with all the power at its disposal, should have the privilege of making about one of its subjects a false statement which it is not prepared to justify. The F privilege of a defamatory retort in self-defence is not open to the Government because, as stated in the authorities referred to above, that privilege is given so that a defendant may defend himself against imputations upon his own character. The Government of the country, as such, has no character to be attacked. It cannot be defamed and cannot G sue for defamation. See Van Heerden & Others v S.A.R., 1946 AD 999, especially at pp. 1005, 1009, 1012 - 4. See also Conroy v Nicol, 1951 (1) SA 653 (AD) at pp. 660 - 1. Just as the Government cannot sue for defamation on the grounds that such a right would be an undue interference with the freedom to criticise the Government, so would it H be wrong to concede to the Government the right to reply to an attack upon it by making defamatory...