Neethling v Du Preez and Others; Neethling v Weekly Mail and Others

• Jurisdiction: South Africa
• Citation: 1995 (1) SA 292 (A)

Neethling v Du Preez and Others;
Neethling v Weekly Mail and Others
1995 (1) SA 292 (A)

1995 (1) SA p292

Citation	1995 (1) SA 292 (A)
Case No	184/91; 401/91
Court	Appellate Division
Judge	Corbett CJ, Hoexter JA, Nestadt JA, Nienaber JA, Nicholas AJA
Heard	August 29, 1994
Judgment	September 27, 1994

Flynote : Sleutelwoorde A

Appeal — Generally — Power of Courts on hearing of appeals — Power of Appellate Division to determine quantum of damages on appeal — Supreme C Court Act 59 of 1959, s 22(b) — Preferable interpretation of s 22(b) that Appellate Division may in case of successful appeal itself determine damages if circumstances so require — Appellate Division having done so in past — If accepted that Appellate Division has power to determine such damages, further question is whether in circumstances it should exercise such power rather than remit matter to trial Court — General rule is that D determination of damages falls particularly within domain of trial Court — Although in particular case interests of justice and convenience might be best served if damages fixed by Court of appeal, exercise of such power by latter representing an encroachment on function intrinsic to trial Court — E Departure from general rule accordingly warranted only in special circumstances — Each case to be dealt with on own facts — Objection by one or other party a factor strongly militating against any departure from general rule — Factors which in past have weighed with Appellate Division in its decision itself to fix damages listed.

Headnote : Kopnota

F The appellant, having been unsuccessful in a Local Division in two separate actions for damages for defamation, appealed successfully to the Appellate Division ('the AD'). Counsel on both sides agreed that in such event the matter should be remitted to the trial Court for it to determine the award of damages. The AD, however, was of the opinion that remittal to the trial Court might in the present case prove inconvenient to all G concerned, and made an ancillary order that the parties be given leave to file further heads of argument regarding, inter alia, the reasons why the quantum of damages should be determined by the trial Court and not the AD. The appellant submitted in its additional heads of argument that it would be appropriate in the present case for the AD to determine the damages, while the respondents were of the opinion that the AD possessed no original jurisdiction to do so. In view of the stance adopted by the respondents the AD proceeded to issue a directive in terms of which the H appellant was invited to file further heads of argument in response to those of the respondents. In the appellant's further heads it was again submitted that the AD had jurisdiction itself to determine the damages and that it should do so in the circumstances of case. The AD proceeded to decide the issue in the light of the provisions of s 22 of the Supreme Court Act 59 of 1959, in terms of which 'the Appellate Division . . . shall have power . . . (b) to confirm, amend or set aside the judgment or order which is the subject of the appeal and to give any judgment or make any order which the circumstances may require'. I

Held, that if, as a matter of substantive law, the AD lacked the competence itself to determine the amounts of damages to be awarded to the appellant, then it was bound to remit the matter to the trial Court; if, on the other hand, it had such power, then the question arose whether in all the circumstances of the case the AD should exercise it rather than remit the matter. (At 295D/E-E/F.)

Held, further, that counsel for the appellant was correct in his submission that when in an action for damages the trial Court has J non-suited the plaintiff on the merits, then in

1995 (1) SA p293

A a successful appeal the AD may, if the circumstances so require, itself determine the damages to be awarded to the appellant plaintiff: the words of s 22(b) were naturally susceptible of such an interpretation, while counsel for the respondents' argument that the power conferred on the AD had to be construed as being limited to matters arising directly from the appeal itself, assigned an artificially restricted meaning to the provisions, which would in practice lead to incongruous results and inhibit the expeditious dispatch of litigation. (At 297G-I.)

B Held, further, that a survey of reported decisions on the issue showed that in the past the AD had in the sort of situation presently under discussion, when appropriate, itself fixed the damages to be awarded to the plaintiff. (At 298E.)

Held, further, that it was accordingly legally competent for the AD to fix the damages to which the appellant was entitled. (At 301A/B-B.)

Held, further, as to whether the Court should do so in the present C circumstances, that the general rule was that the determination of damages was a function particularly within the province of the trial Court: although the interests of justice and convenience might in a specific case be best served by the determination of damages by an appellate tribunal, the exercise of such power by the latter Court nevertheless represented an encroachment upon a function intrinsic to the trial Court. (At 301B/C-C/D.)

Held, further, that in the absence of special circumstances the AD would D be slow to depart from the general rule, and that this would more particularly be the case in a defamation matter, where compensation was primarily for sentimental loss. (At 301G-H.)

Held, further, that it appeared from earlier AD judgments that the following factors had weighed with the Court in its decision itself to fix damages rather than to remit the matter to the trial Court: that the damages should be minimal; that the trial Court had omitted to make its own assessment of expert testimony adduced in relation to the issue of E damages; that the proceedings before the trial Court had been protracted and very costly; that no evidence in regard to the quantum of damages had been led before the trial Court; and that counsel on both sides in the appeal had requested the AD to deal with the matter. (At 301H/I-302A/B.)

Held, further, that although it was impossible to attempt a complete list of those factors which could be regarded as circumstances special enough to warrant a departure from the general rule, an objection by the one or the other party to the appeal to the fixing of damages by the appellate F tribunal was a factor which would militate powerfully against such a departure. (At 302A/B-C.)

Held, further, that in the circumstances of the present case the respondents' objection had to operate decisively against any determination of the damages by the AD. (At 302E-F.)

Held, accordingly, that it was in the circumstances appropriate for the G damages to be fixed by the trial Court. (At 302J.) So ordered.

Case Information

Argument on whether the quantum of damages in a defamation case should be determined by the Appellate Division or by the trial Court. The facts appear from the judgment of Hoexter JA.

B Roux (with him M M Witz) for the appellant referred to the following H authorities: International Tobacco Co (SA) Ltd v United Tobacco Co (South) Ltd (1) 1955 (2) SA 1 (W); Muller v SA Associated Newspapers Ltd and Others 1972 (2) SA 589 (C) at 595A; Burchell The Law of Defamation in South Africa at 294 et seq; Neethling v The Weekly Mail and Others 1994 (1) SA 708 (A) at 713H-714E; 725G-H; 729J-730B; 751G-H; 786F-787A, 800J-801C; South African Associated Newspapers Ltd and Another v Yutar I 1969 (2) SA 442 (A) at 455H, 456H, 457H, 458A-D; Buthelezi v Poorter and Others 1975 (4) SA 608 (W) at 613H, 614B, 615E-616A, 616D, 616G, 618A-H; S M Kuper 'A Survey of the Principles on which Damages are Awarded for Defamation' (1966) 83 SALJ 477 at 478; Randfontein Estates Gold Mining Co, Witwatersrand Ltd v Sacks 1945 CPD 101; Smith v Die Republikein (Edms) Bpk J en 'n Ander 1989 (3) SA 872 (SWA) at 876A,

1995 (1) SA p294

A 881A; Campbell v Spottiswoode (1863) 3 B&S 769 at 777; Norton and Others v Ginsburg 1953 (4) SA 537 (A) at 550F; Marruchi v Harris 1943 OPD 15 at 21; Vengtas v Nydoo 1963 (4) SA 358 (D) at 393E; Moolman v Slovo 1964 (1) SA 760 (W) at 763E; Chetcuti v Van der Walt 1993 (4) SA 397 (T) at 400J; Geyser en 'n Ander v Pont 1968 (4) SA 67 (W) at 76E-F, 80A, 80B; Khan v Khan 1971 (2) SA 499 (RA) at 500C; Salzmann v Holmes 1914 AD 471 at 481; B Gray v Poutsma 1914 TPD 203 at 211; Sachs v Voortrekker Pers 1942 WLD 99 at 120; Sachs v Du Preez 1946 WLD 94 at 133; Caxton Ltd and Others v Reeva Forman (Pty) Ltd 1990 (3) SA 547 (A) at 575F-G, 577H; Botha v Pretoria Printing Works Ltd and Others 1906 TS 710 at 715; Harms Civil Procedure in C the Supreme Court para T21; Mills Litho (Pty) Ltd v Storm Quinan t/a Out of the Blue 1987 (1) SA 781 (C) at 783J, 784A, 785I; Hainard v Estate Dewes 1930 OPD 119 at 126; S v Du Plessis en 'n Ander 1994 (1) SACR 323 (T) at 329g; Universal City Studios Inc and Others v Network Video (Pty) Ltd 1986 (2) SA 734 (A) at 754G-I; Airoadexpress (Pty) Ltd v Local Road D Transportation Board, Durban and Others 1986 (2) SA 663 (A) at 680E-G; Belinco (Pty) Ltd v Bellville Municipality and Another 1970 (4) SA 589 (A) at 600F; Local Road Transportation Board and Another v Durban City Council and Another 1965 (1) SA 586 (A) at 598D-G; Coin Security Group (Pty) Ltd v Smit NO and Others 1992 (3) SA 333 (A) at 347E-I; Ex parte Millsite Investments Co (Pty) Ltd 1965 (2) SA 582 (T) at 585F-H; Republikeinse E Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA 773 (A) at 783A-D; Moulded Components & Rotomouldings SA (Pty) Ltd v Coucourakis and Another 1979 (2) SA 457 (W) at 462H-463B; Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 at 200; Halsbury's Laws of England 4th ed vol 28 para...