Norton and Others v Ginsberg

• Jurisdiction: South Africa
• Judge: Greenberg JA, Schreiner JA and Hoexter JA
• Judgment Date: 01 October 1953
• Citation: 1953 (4) SA 537 (A)
• Hearing Date: 16 September 1953
• Court: Appellate Division

G Schreiner, J.A.:

I agree with the conclusion reached by my Brother HOEXTER and in the main with his reasons therefor. On one or two points, however, I feel constrained to express a slightly different view.

H I can find nothing in the record that suggests that HERBSTEIN J., was justified in his severe comments on the plaintiff's conduct. But, while concurring in the rejection of these comments, I do not wish to be taken as agreeing that it is not unreasonable to think that when a newspaper has published a defamation, not as expressing the views of the newspaper, but as reporting what was said by someone else, no useful apology by the newspaper is possible. Our

Schreiner JA

law recognises that the injury to a defamed person's reputation may often be reduced by the publication of a timeous, full and ample apology by the defamer. The mitigating effect of an apology will obviously vary A greatly with the circumstances. In the case of defamation by a newspaper I know of no authority for the proposition that only where the defamation expresses or purports to express the knowledge or opinion of the newspaper itself concerning the plaintiff is an apology possible - the suggestion being that one cannot effectively apologise for what B originates from another and has only been passed on by oneself. It seems to me to be clear that if the original author of the defamation can lessen the injury by publicly confessing his error and expressing his regret, so the disseminator of another's defamatory words can effect a similar mitigation by declaring his conviction that the words were C devoid of truth, and expressing his regret. Indeed, the reader might easily be more inclined to disbelieve in the truth of the defamatory matter if it were declared to be false by a newspaper of such repute that it is considered unlikely simply to yield to threats of D action, than if it were only admitted to be false by the possibly hardly known original author. The contrition aspect of an apology is no doubt of minor importance in its effect on the reputation of the defamed person, though his wounded feelings may be soothed by appropriately humble expressions of regret; this factor, at any rate, operates equally E in the case of the disseminator and the original author.

Another aspect of the case to which I wish to refer is the nature of the defamatory matter published. Obviously if the newspaper had used the defamatory language in question, as expressing its own views about the F plaintiff, the damages would have been far heavier. Even if that had not been the position, but if a similar string of calumniatory words had been used of the plaintiff in a contributed article or letter, the ordinary reader might well have been impressed by the facts that someone had deliberately written these evil things of the plaintiff and that the G newspaper had seen fit to give the article or letter so much recognition as arises from publication; again the damages would, I apprehend, be substantially heavier than in a case like the present one. But here we have what on the face of it is a report of some form of legal proceedings, and the ordinary reader would, I think, know that H what witnesses say often conflicts with what is said by others and may very well be false. What was said concerning the plaintiff in this case was not even propounded as the truth by the witness, but was alleged by him to have been uttered by the deceased bookmaker, Swede, in the course of and immediately after aquarrel with his attorney, the plaintiff. I doubt whether the ordinary reader would attach much credence to the witness's account of what Swede said, but, even if he accepted it as perhaps true, he would not, unless he were very foolish, easily believe in the truth of the

Hoexter JA

abusive attacks of Swede upon his attorney. The plaintiff is entitled to be compensated for the damage caused by the defendants in influencing the opinions about him even of foolish people, but the damage to his reputation must obviously vary with the extent to which credence would A be likely to be given to the defamation by the ordinary reader.

There being, as HERBSTEIN, J., found, no ground for imposing punitive damages on the defendants, and the learned Judge having apparently thought, mistakenly, that he should increase the damages in order to B emphasise the untruthfulness of the defamation, I should have been disposed to hold that, gross though the words undoubtedly were, the amount paid into Court would have sufficiently compensated the plaintiff, had it not been for the factor of the fall in the value of money, which HERBSTEIN, J., disregarded as inapplicable. As in cases C where pain and inconvenience have to be compensated, the assessment of general damages for defamation must largely depend on the opinion of the individual Judge. Inevitably, even if only subconsciously, he is guided by the amounts that have been awarded in similar cases in the past, and it is natural and right that, where it is common knowledge D that there has been a considerable change in the value of money, some effect should be given to this fact. The allowance must necessarily be rough and should, I think, incline to conservatism. But some allowance should be made, not only when the Judge makes a direct comparison with E the sums awarded in cases decided before the change, but also when he is applying his generalised experience of the sort of sum that is usual and therefore appropriate in such cases.

In the circumstances, I find a certain compensation in the points upon which I am in respectful disagreement with the learned trial Judge. F Bearing in mind the unavoidably large part played by individual judgment in assessing damages in these cases I cannot say that the award was wrong, and I concur therefore in the dismissal of both the appeal and the cross-appeal.

G HOEXTER, J.A.: The first appellant is the editor of the Cape Times, a newspaper circulating within the Union of South Africa and, more particularly, in Cape Town and the Cape Province; the second appellant is the proprietor and printer and the third appellant is the distributor of the Cape Times. The respondent is an attorney practising in Johannesburg. The Cape Provincial Division awarded the sum of £500 with H costs as damages for defamation to the respondent, to whom I shall refer as the plaintiff, in an action against the appellants, to whom I shall refer as the defendants. This award is attacked as being excessive by the defendants in their appeal and as being inadequate by the plaintiff in his cross-appeal. The defamatory statements of which the plaintiff complained appeared in a report published in the Cape Times on the 24th April, 1951, which reads as follows:

Hoexter JA

'Bookmaker's Quarrel with Attorney

Evidence in Insolvency

Inquiry

Johannesburg - When the examination of the affairs of the insolvent A estate of the late Asher Swede, bookmaker, was resumed in the Insolvency Court yesterday, Gert Coetzee, a racehorse trainer, said he had heard Swede refer to a D. H. Ginsberg as a 'blackmailer'.

Coetzee said he had known Swede for about 18 years 'as a bookmaker and as a friend'.

I was very friendly with him and visited him at his house frequently. At his house I met many of his acquaintances and friends. One of these was B a Mr. D. H. Ginsberg who was, when I met him, Mr. Swede's attorney. I know that at a certain date Mr. Swede quarrelled with Mr. Ginsberg. I was present during the quarrel, which was over certain documents relating to the Mondeor Township. I think the documents were shares, which were in Mr. Ginsberg's possession.

I remember Mr. Swede saying:

'You are holding these documents to the value of £60,000 or £70,000, and I am unable to get hold of them.'

C It appeared from the argument that Mr. Swede wanted the documents but that Mr. Ginsberg was unable to give them to him.

'Liar and thief'

D During the argument Mr. Swede called Mr. Ginsberg 'a liar and a thief'. Mr. Ginsberg said he had the documents.

After Mr. Ginsberg had left Mr. Swede said:

'I have been swindled right and left.'

He called Mr. Ginsberg a blackmailer.'

E In their plea the defendants admitted that they had published the statements concerning the plaintiff wrongfully, unlawfully and maliciously. They denied that the plaintiff had suffered damage by reason of the publication and then pleaded as follows:

'4. Alternatively, if the plaintiff has suffered the damage alleged, or any damage, which is denied, then defendants plead in mitigation of damages as follows:

(a)

F The said article was a fair and accurate report of proceedings held under sec. 152 of the Insolvency Act.

(b)

The said proceedings were presided over by a magistrate and were held in open court and the defendants bona fide and reasonably believed that they were properly so held.

(c)

The defendants published the said report on the day following G the day on which the proceedings in question were held, bona fide and in the ordinary course of business for the information of the public.

(d)

In a letter dated the 7th September, 1951, defendants expressed their regret at and apologised for the publication complained of and any inconvenience which may have been caused to the plaintiff in consequence thereof, and also offered to publish prominently a suitably worded apology. The defendants hereby repeat this apology and this offer.

H 5. Defendants have, in terms of Rule of Court 24, paid into Court the sum of £250 by way of satisfaction of plaintiff's claim.'

The replication of the plaintiff reads as follows: -

'1. As to para. 4 of the defendants' plea:

(i)

Plaintiff admits that the said article purported to be a report of proceedings held under sec. 152 of the Insolvency Act and that the said proceedings were presided over by a magistrate.

(ii)

Plaintiff...