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

• Jurisdiction: South Africa
• Citation: 1994 (1) SA 708 (A)

Neethling v Du Preez and Others;
Neethling v the Weekly Mail and Others
1994 (1) SA 708 (A)

1994 (1) SA p708

Citation	1994 (1) SA 708 (A)
Case No	184/91 and 401/91
Court	Appellate Division
Judge	Corbett CJ, Hoexter JA, Nestadt JA, Nienaber JA and Nicholas JA
Heard	August 16, 1993; August 17, 1993; August 18, 1993; August 19, 1993; August 20, 1993
Judgment	December 2, 1993

Flynote : Sleutelwoorde B

Defamation — Defences — Justification — Defence raised in order to repel presumption of unlawfulness — Nothing in South African law to justify C proposition that such defence only attracts an evidentiary burden ('weerleggingslas').

Defamation — Defences — Justification — Defences of truth in the public interest and qualified privilege — Defendant encumbered with full onus of proof in regard to such defences — Rationale and policy considerations for such requirement set out.

Defamation — Defences — Justification — Proposition that 'general D principle is whether public policy justifies the publication and requires that it be found to be a lawful one' — Such proposition untenable — In present state of law a court not free to consider issue of liability for defamatory publication by a newspaper independently of substantive requirements of traditional defences of privilege, truth in the public benefit and fair comment — South African law recognising no such defence E as stated in proposition, whether matter complained of published by newspaper or anybody else.

Defamation — Defences — Justification — No general 'newspaper privilege' at common law — Notion that for purposes of claiming justification in respect of defamation press occupies 'a special position' alien to South F African law.

Headnote : Kopnota

Nothing stated in Suid-Afrikaanse Uitsaaikorporasie v O'Malley 1977 (3) SA 394 (A) represents authority for the proposition that in the South African law of defamation a defence raised in order to repel the presumption of unlawfulness attracts no more than an evidentiary burden or 'weerleggingslas'. (At 769B.)

G The substantive law governing defamation prescribes not only what facts the plaintiff must prove, but also what facts must be established by a defendant whose defence involves confession and avoidance. If the defendant raises the defence of qualified privilege, then he must prove his duty or right to communicate the defamatory matter to another; and the latter's reciprocal interest to receive the communication. These are matters which need to be established on a balance of probabilities. The requirements of the substantive law cannot here be satisfied by a mere H equiponderance of evidence which leaves the Court unable to say whether or not either element of the defence has been established. To hold otherwise would be subversive of principles governing the law of defamation deeply entrenched in our legal system. (At 769G-I.)

Apart from the fact that in principle (in a defamation action) all three of the defences of qualified privilege, fair comment and truth in the I public benefit should be governed by the same onus, there are in the case of the defence of truth in the public benefit cogent policy considerations for burdening the defendant with the full onus of proof. In the case of qualified privilege the defendant who transmits the defamatory matter is generally thus impelled by considerations of duty or of protection of an interest. The matter stands rather differently in regard to the defence of truth in the public interest. Here no form of compulsion operates on the mind of the defendant whose decision to put the character of the plaintiff in jeopardy proceeds entirely from his own volition. The rationale of the J defence seems to be that the law will not allow a

1994 (1) SA p709

A person to recover damages in respect of an injury to a reputation which he does not, or at any rate should not, possess; coupled with the fact that society has an interest in correctly estimating the true character of its members. Since it is entirely of his own accord that the defendant elects to vilify the plaintiff, justice demands that he should do so at his peril; and that in an action for defamation he should have to establish what he should have troubled to verify before he maligned the plaintiff. One recoils from the suggestion that it is enough for a defendant who invokes the defences of truth in the public benefit to plead, and to B prove, no more than (1) that it is just as likely as not that his defamatory allegations concerning the plaintiff are true; and (2) that it is not improbable that they might be in the public benefit. (At 770C-E/F and F/G-H.)

In South African law, accordingly, a defendant in a defamation action is encumbered with a full onus in regard to the defences of truth in the public benefit and of qualified privilege. (At 770H-H/I.)

C The proposition stated in Zillie v Johnson and Another 1984 (2) SA 186 (W) at 195B-C in relation to the lawfulness of a defamatory publication, namely that '(t)he general principle is whether public policy justifies the publication and requires that it be found to be a lawful one . . .', is untenable. It is trite that underlying the three traditional and specialised defences (privilege; truth in the public benefit; and fair comment) are the requirements of public policy. Since these three categories of justification do not represent a numerus clausus it may also D be accepted that in the further development of our law of defamation, if and when the Courts decide to define and delimit any further categories of justification, the governing factor will likewise be the dictates of public policy. The fact that the traditional defences do not constitute a closed list of categories of justification, however, does not mean that in the present state of the law a court is free to consider the issue of liability for the publication of a defamatory statement by a newspaper independently of the substantive requirements of the traditional defences, E and simply by abstract reference to a 'general principle . . . whether public policy justifies the publication and requires that it be found to be a lawful one'. Our law recognises no such defence to an action for defamation, whether the matter complained of be published by a newspaper or anybody else. (At 777D-G/H.)

At common law there is no general 'newspaper privilege'. Any notion that, F for the purposes of claiming justification in respect of defamation, the press occupies 'a special position', so far from being recognised by our law, is entirely alien to it. (At 777G/H-H/I.)

The decision in the Witwatersrand Local Division in Neethling v Du Preez and Others; Neethling v The Weekly Mail and Others reversed.

Appeal from a decision in the Witwatersrand Local Division (Kriegler J). G The facts appear from the judgment of Hoexter JA.

S A Cilliers SC (with him M Witz) for the appellant referred to the following authorities: Johnson v Rand Daily Mails 1928 AD 190; Joubert and Others v Venter 1985 (1) SA 654 (A); Suid-Afrikaanse Uitsaaikorporasie v O'Malley 1977 (3) SA 394 (A) at 403B; Marais v Richard en 'n Ander 1981 (1) SA 1157 (A) H ; Borgin v De Villiers en Andere 1980 (3) SA 556 (A); May v Udwin 1981 (1) SA 1 (A); Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992 (3) SA 579 (A); Spencer Bower Actionable Defamation 2nd ed (1923) at 312; Jordaan v Van Biljon 1962 (1) SA 286 (A); Pillay v Krishna and Another 1946 AD 946; Mabaso v Felix 1981 (3) SA 865 (A); Voet 47.10.9 (Gane's translation vol 7 at 224); Schmidt (1985) 102 South I African Law Journal 579; Zillie v Johnson and Another 1984 (2) SA 186 (W); Pakendorf en Andere v De Flamingh 1982 (3) SA 146 (A); Benson v Robinson and Co (Pty) Ltd 1967 (1) SA 420 (A); J C van der Walt in Gedenkbundel H L Swanepoel at 67; S v Bergh 1976 (4) SA 857 (A); Schmidt Bewysreg 3rd ed at 352; Gleneagles Farm Dairy v Schoombee 1949 (1) SA 830 (A); Minister of J Law and Order v Hurley 1986 (3) SA 568 (A) at

1994 (1) SA p710

A 587B-589G; During NO v Boesak 1990 (3) SA 661 (A) at 672H-680C; Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) at 153B-I; Iyman v Natal Witness Printing & Publications Co (Pty) Ltd 1991 (4) SA 677 (N); Clerk & Lindsell on Torts 16th ed (1989) at 1124-26 paras 21-58 - 21-60, at 1164 para 21-108 and at 1189-90 para 21-143; Fleming The Law of Torts 7th ed (1987) B at 527-8, 544-7 (Australian law); McDonald Irish Law of Defamation 2nd ed (1989) at 97-116, 161-5; Brown The Law of Defamation vol 1 (1987) at 384-6, 585-91 (Canadian law); Carbonel v Robinson & Co (Pty) Ltd 1965 (1) SA 134 (D) at 151C-F; 'Openbare Belang as Selfstandige Verweer by Laster' (1993) THRHR at 323; Winfield and Jolowicz on Tort 13th ed (1989) at 345; C Street on Torts 8th ed (by Brazier) at 416; Davis & Sons v Shepstone (1886) 11 AC 187 (PC); Perera v Peiris [1949] AC 1; Webb v Times Publishing Co Ltd [1960] 2 All ER 789 (QB); Blackshaw v Lord [1983] 2 All ER 311 (CA) at 327a-d, 329, 332c-d; Austin v Mirror Newspapers Ltd 63 ALR (1985-6) 149 (PC); Morosi v Mirror Newspapers Ltd 1977 (2) NSWLR 749; Hook D and Another v John Fairfax & Sons Ltd 42 ACTR (1982) 17; John Fairfax & Sons Ltd v Hook and Another 47 ALR (1982-83) 477; Comalco Ltd v Australian Broadcasting Corporation 64 ACTR (1985-6) 1 at 64; Australian Broadcasting Corporation v Comalco Ltd 68 ALR (1986) 259 at 281, 289, 297, 339, 342; Smith v John Fairfax & Sons Ltd 81 ACTR (1988) 1; Church of Scientology Inc v Anderson 1980 WAR 71 (also reported in The Australian Digest E Supplement (1980) 177: Defamation item 41); Australian Law Reform Commission Report 11 - 'Unfair Publication: Defamation and Privacy' at 72-81 paras 138-54; Truth (NZ) Ltd v Holloway 79 (1960) NZLR 69 at 79, 83; Eyre v New Zealand Press Association Ltd (1968) NZLR 736 at 737, 741; Templeton v Jones...