Poovalingam v Rajbansi

• Jurisdiction: South Africa
• Citation: 1992 (1) SA 283 (A)

Poovalingam v Rajbansi
1992 (1) SA 283 (A)

1992 (1) SA p283

Citation	1992 (1) SA 283 (A)
Court	Appellate Division
Judge	Corbett CJ, Van Heerden JA, Smalberger JA, Goldstone JA and Van den Heever AJA
Heard	September 16, 1991
Judgment	September 26, 1991

Flynote : Sleutelwoorde B

Defamation — Defences — Privilege — Parliamentary privilege — Privilege extending to (a) any matter or thing brought by petition, bill, resolution, motion or otherwise and (b) any matter or thing which C may have been 'said' before or in Parliament or any committee — Letter allegedly defaming appellant delivered by hand to all Members of House of Delegates — Letter not relating to business transacted in House on that date — Not recognised Parliamentary procedure within the limits prescribed by s 8 of Powers and Privileges of Parliament Act 91 of 1963 — Words 'or otherwise' in s 8 of Act — Words 'petition, bill, D resolution, motion' in s 8 all being recognised genus of Parliamentary procedures — Words 'or otherwise' to be interpreted ejusdem generis to include similar procedures recognised by Parliament — Letter not being recognised Parliamentary procedure and accordingly not falling within section — Letter part of personal dispute between Members — Privilege E not extending to anything said within geographical precincts of Parliament — Special plea of Parliamentary privilege accordingly failing.

Headnote : Kopnota

Both appellant and respondent were Members of the House of Delegates in F Parliament. Respondent had arranged for a letter of which he was the author to be delivered by hand to the desk of each of the 45 Members of the House of Delegates in the Debating Chamber of that House. Appellant alleged that the letter defamed him and sued the respondent for damages. The respondent defended the action, pleading, inter alia, that in the circumstances and by reason of s 8 of the Powers and Privileges of Parliament Act 91 of 1963 he was not liable for any defamation contained in the aforesaid letter. The matter was determined on the basis of a G stated case in terms of Rule 33(4) of the Uniform Rules of Court, the Judge upholding the respondent's special plea of Parliamentary privilege based on the provisions of s 8. The letter had nothing to do with the business transacted in Parliament on that day. It related to a private dispute between appellant and respondent, though it did make reference to the appointment of a judicial commission of enquiry. It was against this decision, with the leave of the trial Judge, that appellant appealed to the Appellate Division.

H Held, that the Parliamentary privilege derived from English law where there was an absolute Parliamentary privilege of freedom of speech which had the effect of protecting Members of Parliament from being sued for damages or criminally prosecuted for words spoken or written in the course of Parliamentary proceedings.

Held, further, that the privilege rested on two bases: (1) that Parliament had to have complete control over its own proceedings and its own Members and that accordingly matters arising in that sphere should I be examined, discussed and adjudged in Parliament and not elsewhere; and (2) that a Member of Parliament had to have a complete right of free speech without any fear that his motives or intentions or reasoning would be questioned or held against him thereafter.

Held, further, that in determining the ambit of Parliamentary privilege the Court should, while giving full attention to the need for comity between the Courts and Parliament, not be astute to find reason for the ousting of the jurisdiction of the Court and for the limitation or J defeat of a litigant's legitimate claims.

1992 (1) SA p284

A Held, further, that the immunity conferred on a Member by s 8 of the Act related to two types of act: (a) any matter or thing brought by petition, bill, resolution, motion or otherwise; and (b) any matter or thing which he may have said before or in Parliament or any committee.

Held, further, that the word 'said' in (b) did not cover both written and oral communications but was intended to deal only with the spoken word: therefore, the letter in question could not fall under (b).

B Held, further, with regard to the question of whether the letter could be brought under (a), that it was clearly not a petition, bill, resolution or motion, which were all well-established procedures forming a clearly recognisable genus recognised by Parliament.

Held, further, that the words 'or otherwise' in s 8 should be interpreted ejusdem generis so as to embrace similar procedures by which Parliamentary business was transacted and the letter was clearly not a C form of procedure recognised by Parliament.

Held, accordingly, that on the facts no case for Parliamentary privilege had been made out: the letter had nothing to do with any Parliamentary business transacted on the day of its publication, nor did it fall within the ambit of any procedure recognised by Parliament.

Held, further, that it was a further salvo discharged in the running D battle between appellant and respondent: it was to a great extent a personal feud and the letter was written in respondent's personal capacity rather than in the exercise of his functions as a Member of Parliament.

Held, further, that the link between the letter and the appointment of a judicial commission of enquiry referred to therein was too tenuous to bring the publication of the letter within the ambit of Parliamentary procedures or business and in any event the letter, not being a recognised Parliamentary procedure, would not have been covered by E privilege even if the motion had been moved and adopted immediately.

Held, accordingly, that neither s 2 nor s 8 of the Act provided respondent with any legal immunity from the consequences of having published the letter to the House of Delegates.

Held, further, with regard to the submission that in English law anything said or done within the walls of Parliament was covered by F Parliamentary privilege; and that the words 'proceedings in Parliament' in art 9 of the English Bill of Rights of 1688 meant simply what happened in Parliament; and that this was the concept taken over by the South African Legislature, that there was no substance in such submission which was contradicted by all the English authorities.

Held, accordingly, that respondent's special plea based on Parliamentary privilege was ill-founded and ought not to have been upheld by the Court a quo.

The decision in the Durban and Coast Local Division in Poovalingam v Rajbansi reversed. G

Case Information

Appeal from a decision in the Durban and Coast Local Division (Squires J). The facts appear from the judgment of Corbett CJ.

M J D Wallis SC (with him A N M Harcourt) for the appellant referred to the following authorities: The Shorter Oxford Dictionary vol II 3rd H ed sv 'said'; HAT 2nd ed at 944 sv 'sê; Kiplin Parliamentary Procedure in South Africa 3rd ed at 100-2; Erskine May Treatise on the Law, Privileges, Proceedings and Usages of Parliament 20th ed at 81; Coffin v Coffin (1808) 4 Mass 1.

P J Olsen for the respondent referred to the following authorities: Kahn v Time Incorporated and Another 1956 (2) SA 580 (W) at 583; Van I Heerden and Others NNO v Queen's Hotel (Pty) Ltd and Others 1973 (2) SA 14 (RA) at 16; South African Transport Services v Olgar and Another 1986 (2) SA 684 (A) at 697; Ex parte Watson (1869) LR 4 QBD at 573; Arprint Ltd v Gerber Goldschmidt SA Ltd 1983 (1) SA 254 (A) at 261; Bradlaugh v Gossett (1884) 12 QBD 271; Church of Scientology of California v Johnson-Smith [1972] 1 All ER 378 (QB); Rivlan v Bilainkin [1953] 1 QBD J 485.

1992 (1) SA p285

A Cur adv vult.

Postea (September 26).

Judgment

Corbett CJ:

This appeal raises the interesting subject of Parliamentary privilege and in particular the circumstances under which it affords a defence to an action for damages for defamation. B

As at the time of the events with which this case is concerned, the appellant was a Member of the House of Delegates, one of the Houses of Parliament as constituted by the Republic of South Africa Constitution Act 110 of 1983. The respondent too was a Member of the House of Delegates and in addition he held the position of Chairman of the C Ministers' Council of the House of Delegates. Respondent was the leader of the National Peoples Party, then the majority party in the House. Appellant was a member of the Progressive Federal Party, one of the opposition parties.

On 5 February 1988 respondent arranged for a letter of that date and of which he was the author to be distributed to all 45 Members of the D House of Delegates in a manner which I shall later describe in more detail. Subsequently appellant, alleging that the letter defamed him, sued respondent for damages in the Durban and Coast Local Division. The letter is annexed to appellant's particulars of claim and marked 'A'. For convenience I shall refer to it as 'annexure A'. Appellant's particulars of claim set forth a second cause of action for defamation E based upon a letter (annexure 'B') written by the respondent on 27 August 1987 and published to a Mr M Rajab, also a Member of the House of Delegates.

In his plea (para 2(a)) the respondent admits that he published annexure A to all the Members of the House of Delegates. He however F avers (in para 2(b) and (c)) that the letter was 'hand delivered' to them 'at their seats in Parliament'; and that in the circumstances and by reason of the provisions of s 8 of the Powers and Privileges of Parliament Act 91 of 1963 ('the Act'), he (respondent) is not liable for any defamation contained in annexure A. In addition (in para 3) the respondent denies that annexure A is defamatory of the appellant.

G I need not refer to what was pleaded in respect of...