Pienaar and Another v Argus Printing and Publishing Co Ltd

• Jurisdiction: South Africa
• Judge: Ludorf J
• Judgment Date: 27 April 1956
• Court: Witwatersrand Local Division

Ludorf, J.:

The defendant is the owner, printer and publisher of a newspaper known as The Star which has a circulation of about 150,000

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daily copies in the Union of South Africa. On the 1st day of August, 1955, the defendant caused a leading article in The Star to be published under the caption 'The Senate Disgrace' the full text of which is the following:

'The Senate Disgrace.

A There has been no more undignified spectacle in the history of South African politics than the scramble among Nationalists for seats in the Senate under the new dispensation. If anything more were needed to expose the shabbiness of the Senate Act device it was this stampede of would-be politicians for the pickings in the new make-believe Chamber that will pass for a constituent part of the central institution of our democracy.

The applicants are taking part in a party lottery in which the prize is B a senatorship at £1,400 a year, plus the privileges and status enjoyed by members of Parliament. Their stake in the gamble is a non-returnable deposit of £20, which has already swelled the party funds in the Transvaal - not the Exchequer which will pay the salaries - by some £3,000.

With a natural reluctance to expose these ardent patriots to the ridicule they deserve, the party office is withholding the names of the 150 who are competing for the 27 coveted places. Only the successful candidates, chosen by the party executive, will be made known. There is C no question even of the party membership having a hand in the selection. Like the public generally, they will probably never know who the men (and women) were who were prepared to come forward to save the country.

They are volunteering - for a handsome fee - to do the dirty work of the Nationalist Government by providing the two-thirds majority which the founders of the Union were at pains to require for certain changes in the rights of the voters. That this majority is now being created by D a disreputable subterfuge apparently leaves them quite unmoved. The Government, at the taxpayers' expense, have invented a number of attractive new jobs, and they will vote for anything if they can get them.

The shameful trickery of the Senate Act has been made even more distasteful by this blatant competition. The depths of political cynicism seemed to have been plumbed by the High Court of Parliament, in which members innocent of any legal knowledge jocularly addressed one another as 'judge'. The Senate scrimmage ranks with that ill-fated E constitutional adventure. It is a lowering of the standard of public life that will sadden all those, including many Nationalists, who value South Africa's reputation.'

Thereafter and in the issue of The Star of the 3rd day of August, 1955, the defendant published a list of the names of the aspirant candidates (described in the article as applicants) under the caption 'Transvaal F Nationalist caucus to choose 27 senators from 156 applicants'. It appears from the terms of this latter announcement and indeed the evidence shows that the list of names was republished in The Star after it had been published earlier the same day in another daily newspaper known as Die Transvaler, a newspaper which supports the policy of the National Party, which is in power in the Union Parliament and in the G Transvaal Provincial Council. It is common cause that there were in fact 156 members of the National Party who allowed their names to go forward as aspirants within the National Party for the selection of the 27 candidates which the party would propose for election as senators representing the Transvaal Province in terms of an Act of Parliament H passed earlier in 1955, which reconstituted the Union Senate. The names of the aspirants had to be approved by the Transvaal executive of the National Party and thereafter the selection of the 27 candidates was left to the Transvaal Nationalist members of Parliament and Nationalist members of the Transvaal Provincial Council. This body constitutes the National Party section of the electoral college which was to elect the Transvaal senators in terms of the Senate Act. Because of the majority held by

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the National Party in both the Transvaal Provincial Council and the Union Parliament in so far as Transvaal seats were concerned it was clear that the 27 candidates which the National Party were to propose would all be elected to the Senate, regard being had to the procedure for the election of senators as laid down in the Act.

A It is put in issue on the pleadings but it is clear that both plaintiffs, who have been joined in terms of the Rules of this Court, were among the 156 aspirants and that their names appeared in the list published in The Star of 3rd August, 1955. The evidence also proves that there were people who identified both plaintiffs when the names were published as being two of the candidates for election to positions as B senators representing the Transvaal.

In these circumstances the plaintiffs complain that the article is defamatory of them. They allege that the article read as a whole means and was understood to mean, that they as well as the other aspirants C referred to in the article are persons of a base moral standard who are prepared to act dishonestly provided they are paid for such acts and that they are as a consequence not fit to associate with respectable people.

The defendant denies that the article bears the meaning ascribed to it by the plaintiffs and denies that it is defamatory of them. In the alternative the defendant has pleaded that if any of the statements D contained in the article are defamatory of the aspirant candidates, in so far as they consist of allegations of fact, they are true in substance and in fact; in so far as they consist of expressions of opinion, they are fair comments made in good faith and without malice upon the said facts contained in the article and certain other facts, E all of which are matters of public interest.

The other facts upon which the defendant relies have been admitted by the plaintiffs as well known to members of the public and readers of The Star at the time of the publication of the article, all of which were matters of public interest. The readers knew that:

F (1) in 1931 when the Statute of Westminster was passed by the Parliament of the United Kingdom, a coalition Government was in power in the Union Parliament, consisting of a few members of the Labour Party, and for the rest of members of the National Party;

(2) in or about April, 1931, both Houses of the Union Parliament unanimously passed a motion, which was introduced by the then Coalition G Government, approving of the proposed Statute of Westminister and authorising the taking of steps to secure its enactment by the Parliament of the United Kingdom, 'on the understanding that the proposed legislation will in no way derogate from the entrenched provisions of the South Africa Act' (that is to say, the provisions of secs. 35, 137 and 152 of the said Act);

H (3) during the debates on the motion referred to in sub-para. (2) above, leading members of the Nationale Party, including the then Prime Minister, the late General J. B. M. Hertzog, the late Dr. A. J. Stals, M.P. (then the member for Hopetown and Minister of Health in the Nationalist Government from 1948 to 1951), the late Dr. M. J. van der Merwe, M.P. (then leader of the Nasionale Party in

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the Orange Free State), Dr. D. G. Conradie, M.P. (then member for Lindley, and now member for Uitenhage and chairman of committees in the House of Assembly) and Mr. C. R. Swart, M.P. (then member for Ladybrand and now member for Winburg, Minister of Justice and Deputy A Prime Minister), solemnly pledged themselves and their party to respect the said provision as a matter of honour, good faith and moral obligation;

(4) the National Party has been in power in the Union Parliament continuously since 1948;

B (5) the National Party had at no time, since it came into power in 1948, commanded the support of two-thirds of the total number of members of both Houses of Parliament in respect of legislation which is required by law to be passed by such a majority at a joint sitting of both Houses;

(6) in 1951 the Nationalist Government introduced into Parliament the C Separate Representation of Voters Bill, the purpose whereof was, inter alia, to remove the Cape Coloured voters in the Cape Province from the common roll and to provide for the separate representation of such voters in the Senate, the House of Assembly and the Cape Provincial Council;

(7) in 1951 Parliament, sitting bicamerally, passed the said Bill (the D Separate Representation of Voters Act, 1951) by the votes of those members of the Senate and House of Assembly who supported the Nationalist Government;

(8) in March, 1952, the Appellate Division of the Supreme Court of South Africa held that the said Act was invalid because it had not E been passed in the manner required by secs. 35 and 152 of the South Africa Act, 1909;

(9) shortly thereafter the Nationalist Government introduced into Parliament the High Court of Parliament Bill, which Parliament, sitting bicamerally, passed in or about June 1952, by the votes of those members of the Senate and House of Assembly who supported the F Nationalist Government (the High Court of Parliament Act, 1952);

(10) the High Court of Parliament Act, 1952, purported to create a 'Court of Law' consisting of the members of the Senate and House of Assembly, and to empower such 'court', acting by a majority of members present, to set aside any judgment of the Appellate Division (whether G given before or after the commencement of the Act) whereby any provision of any Act of Parliament had been declared invalid;

(11) shortly thereafter the 'High Court of Parliament' had a sitting which was attended only by supporters of the Nationalist...