National Media Ltd and Others v Bogoshi

• Jurisdiction: South Africa
• Judge: Hefer JA, Hoexter JA, Harms JA, Plewman JA, Farlam AJA
• Judgment Date: 29 September 1998
• Citation: 1998 (4) SA 1196 (SCA)
• Docket Number: 579/96
• Hearing Date: 02 September 1998
• Counsel: SF Burger (with him DB Spitz) for the appellants. IAM Semenya (with him M Naidoo) for the respondents.
• Court: Supreme Court of Appeal

National Media Ltd and Others v Bogoshi
1998 (4) SA 1196 (SCA)

1998 (4) SA p1196

Citation	1998 (4) SA 1196 (SCA)
Case No	579/96
Court	Supreme Court of Appeal
Judge	Hefer JA, Hoexter JA, Harms JA, Plewman JA, Farlam AJA
Heard	September 2, 1998
Judgment	September 29, 1998
Counsel	SF Burger (with him DB Spitz) for the appellants.; IAM Semenya (with him M Naidoo) for the respondents.

Flynote : Sleutelwoorde H

Defamation — Defences — Justification — Lawfulness — Media defendants — Law of defamation requiring balance between common law rights to reputation and to freedom of expression respectively — Strict liability rejected for failure to take account of freedom of expression.

Defamation — Defences — Justification — Lawfulness — Media defendants — Publication in press of false I defamatory allegations of fact not unlawful if, upon consideration of all circumstances of case, publication of facts in particular way at particular time reasonable — Reasonableness — Nature, extent and tone of allegations to be taken into consideration — Relevant factors including, but not confined to, that protection afforded only to material in which public having an interest, as opposed to material J

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interesting to the public; nature of information upon which allegations based, reliability of source and steps A taken to verify information; and opportunity given for response.

Defamation — Liability for — Fault — Media defendants — Compelling reasons for not permitting media to rely upon absence of animus injuriandi — Appropriate to hold media liable for publication of false defamatory allegations unless able to show lack of negligence. B

Defamation — Defences — Justification — Lawfulness — Onus of proof — Media defendants — Presumption of unlawfulness — Considerations of policy, practice and fairness requiring defendant to bear onus of proving all facts relied upon to show that publication reasonable and that defendant not negligent — Proof of reasonableness usually proving lack of negligence. C

Constitutional law — Human rights — Fundamental rights in terms of chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Section 35(3) — Common law development — Defamation — Defences — Justification — Media defendants — Strict liability rejected — Common law restated — Publication in press of false D defamatory allegations of fact not unlawful if, upon consideration of all circumstances of case, publication of facts in particular way at particular time reasonable — Media defendants not entitled to rely upon absence of animus injuriandi — Liable unless able to show lack of negligence — Given presumption of unlawfulness, onus on defendant to prove all facts relied upon to show that publication reasonable and that defendant not negligent — As required by s 35(3), common law restatement striking proper balance between right to respect E for and protection of dignity conferred by s 10 and right to freedom of expression conferred by s 15.

Headnote : Kopnota

The appellants, being the owner and publisher, editor, distributor and printer respectively of a newspaper, had F been sued by the respondent for damages arising from the publication of a series of allegedly defamatory articles published in the newspaper between 17 November 1991 and 29 May 1994. The appellants had applied to amend their plea by the introduction of three additional defences. In essence, the third of the proposed additional defences was that (a) the appellants had been unaware of the falsity of any averment in G any of the articles; (b) had not published recklessly, ie not caring whether the contents of the articles had been true or not (factual allegations were set out in support of this averment); (c) had not been negligent in publishing any of the articles (supporting allegations for this averment were set out); (d) by virtue of the averments and supporting facts in (a), (b) and (c) publication had therefore objectively been reasonable; and H (e) the articles had been published without animus injuriandi. It was submitted, therefore, that publication had been lawful. A Provincial Division relied on Pakendorf en Andere v De Flamingh1982 (3) SA 146 (A) and upheld the respondent's exception to the proposed plea, holding that, since the appellants could escape liability, were the articles to be found defamatory, only if they could at least establish that what they had published was true, their proposed plea was bad in law. I

Both in the Court a quo and on appeal it was argued for the appellants that the Pakendorf case - the effect of which was that, unlike ordinary members of the community (and newspaper distributors), newspaper owners, publishers, editors and printers were liable without fault and, in particular, were not entitled to rely upon their lack of knowledge of defamatory material in J

1998 (4) SA p1198

their publications or upon an erroneous belief in the lawfulness of the publication of defamatory material - had A wrongly been decided and that the proposed defence was valid under the common law. In the alternative it was argued that strict liability of members of the press was unconstitutional because (1) it impinged upon the right to freedom of speech and of expression, which included freedom of the press and of the media, B conferred by s 15(1) of the Constitution of the Republic of South Africa Act 200 of 1993 (the interim Constitution); and (2) it was not in accordance with the spirit, purport and object of chap 3 as required by s 35(3) of the interim Constitution. On appeal,

Held, that it should be borne in mind that liability for defamation postulated an objective element of C unlawfulness and a subjective element of fault (animus injuriandi). Although the presence of both elements was presumed once the publication of defamatory material was admitted or proved, the plaintiff was required to allege that the defendant had acted unlawfully and animo injuriandi and it was for the defendant to either admit or deny these allegations. A bare denial was, however, not enough: the defendant was required to plead facts which legally justified the denial of unlawfulness or animus injuriandi as the case might be. (At 1202F/G--H/I.) D

Held, further, as to whether the appellants' allegations in their proposed plea justified the averment of lawfulness or whether, as had been held by the Court a quo, they could only escape liability if they could at least establish that what they had published was true, that the defences available to a defendant in a defamation action did not constitute a numerus clausus. In South African law the lawfulness of a harmful E act or omission was determined by the application of a general criterion of reasonableness based upon considerations of fairness, morality, policy and the Court's perception of the legal convictions of the community. In accordance with this criterion it was the task of the Court to determine in each case whether public and legal policy required the particular publication to be regarded as lawful. (At 1204D--E/F.) F

Held, further, that, hitherto, whenever members of the press had sought to escape liability for lack of knowledge of the falsity of the defamatory content of their publications, or on account of an honest mistake, the focus had always been on animus injuriandi and not on lawfulness. In the result, the possibility of the legality of the publication of untruthful defamatory statements had not received adequate attention. (At 1204G/H--I.) G

Held, further, as to whether the Pakendorf decision had been wrong and whether the proposed additional defence of lawfulness was valid under the common law, that, although it was trite that the law of defamation required a balance to be struck between the right to reputation, on the one hand, and the right to freedom of expression, on the other, there was no indication in the Pakendorf judgment of a weighing of interests and, in H particular, no indication that the right to freedom of expression had received any attention. (At 1207C/D--D/E.) The rival interests of the right to reputation and the right to freedom of expression were equally important. (At 1207E, read with 1207I/J.)

Held, further, that the stereotyped defences like truth and public benefit, fair comment and qualified privilege I were not adequate protection for freedom of the press (at 1209A--B): while it was true that strict liability inhibited the dissemination of harmful information which could serve no purpose other than to vilify the victim, what should not be forgotten was that it was the right and, indeed, a vital function of the press to make available to the community information and criticism about every aspect of public, political, social and economic activity and thus to contribute to the formation of public opinion. The press and the rest of the media provided the means by J

1998 (4) SA p1199

which useful and sometimes vital information about the daily affairs of the nation was conveyed to its A citizens. Conversely, the press often became the voice of the people - their means of conveying their concerns to fellow citizens, to officialdom and to government. (At 1209F, read with 1209H/I--1210A.)

Held, further, that, if the democratic imperative that the common good was best served by the free flow of B information and the task of the media in the process were recognised, as they should be, it was clear that strict liability could not be defended and should have been rejected in the Pakendorf case. (At 1210G--H.)

Held, further, as to justification, that, although it had been said that the criterion of unlawfulness should be the legal convictions of the community in South Africa, and not elsewhere, the solutions adopted in England, C Australia and the Netherlands were entirely...