Post Newspapers (Pty) Ltd v World Printing & Publishing Co Ltd

• Jurisdiction: South Africa
• Judge: Nicholas J
• Judgment Date: 11 November 1969
• Citation: 1970 (1) SA 454 (W)
• Court: Witwatersrand Local Division

G Nicholas, J.:

This is an application for an interim interdict.

The applicant company is the proprietor and publisher of Post, a weekly newspaper. The first respondent is the proprietor and publisher of The World, a newspaper published daily from Monday to Friday of each week. H These newspapers, which are designed mainly for non-white readers, are rivals, competing for advertising, the revenue from which constitutes the major source of income of the applicant and the first respondent respectively.

A Mr. Brennan is the marketing director of the first respondent. He is also the head of the marketing department of the second respondent. This is the holding company of the first respondent, and it supplies to the first respondent certain services, including the services of its marketing department.

In about July, 1969, Brennan, acting in the course of his employment

Nicholas J

with the first and second respondents, caused to be prepared and sent to a number of advertising agents a report and covering letter (annexures 'B' and 'A', respectively, to the founding affidavit filed by the applicant. I shall refer to annexures 'A' and 'B' together as 'the A Brennan documents'). Annexure 'B' was based on a survey report which had been prepared by the third respondent. Brennan's admitted object in circulating the Brennan documents was to persuade the recipients to place advertising in The World newspaper.

The applicant complains that the third respondent's survey was improperly conducted, and that the results obtained therefrom are B unreliable; that the Brennan documents are

'false and misleading in many respects';

that they

'are false to the knowledge of the first and second respondents and that they have been published maliciously';

and that the continued circulation of these documents

'will undoubtedly cause the applicant substantial loss in advertising revenue'.

C It now applies for an order interdicting the publication or dissemination of the Brennan documents and also of the report prepared by the third respondent, pending the decision of an action to be brought by the applicant for a final interdict.

It was argued that the applicant was entitled to relief on one of two grounds:

(a)

D The Brennan documents misrepresented the relative merits of The World and Post; these misrepresentations were false to the knowledge of Brennan and were made maliciously; they were calculated to cause the applicant patrimonial loss; and consequently they constituted an 'injurious falsehood'.

(b)

E The first and second respondents have published material based on data which they knew to be unreliable; that this will have the effect of 'filching advertising custom from the applicant'; and that this conduct amounts to 'unfair competition'.

F Now every man has a legal right to carry on his lawful business, trade or profession without wrongful interference from others. (Patz v Greene & Co., 1907 T.S. 427 at p. 436; Fichardt, Ltd v The Friend Newspapers, Ltd., 1916 AD 1 at p. 6; Matthews and Others v Young, 1922 AD 492 at p. 507). Difficult questions may arise as to what constitutes 'wrongful interference'. (See the discussion in Dun and Bradstreet G (Pty.) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty.) Ltd., 1968 (1) SA 208 (C) at pp. 216-222). But so far as the applicant's first ground is concerned, the legal principles are clear. The applicant's case is based upon wilful falsehood, and, to adapt to the facts of the present matter the statement of STEYN, C.J., in Geary & H Son (Pty.) Ltd v Gove, 1964 (1) SA 434 (AD) at p. 441C-D:

'What the applicant has to allege and prove is that the respondents have, by word or conduct or both, made a false representation, that they knew the representations to be false, that the applicant has lost or will lose advertising, that the false representation is the cause thereof, and that the respondents intended to cause the applicant that loss by the false representation.'

It is to be observed, however, that under English law:

'If the only false statement complained of is that the defendant's goods are better than the plaintiff's, such a statement is not actionable, even if the plaintiff is damnified by it.'

Nicholas J

(Per LINDLEY, M.R., in Hubbuck & Sons v Wilkinson, Heywood & Clark, Ltd., (1899) 1 Q.B. 86 (C.A.)). In White v Mellin, 1895 A.C. 154, Lord HERSCHELL, L.C., said at p. 164:

'But, my Lords, I cannot help saying that I entertain very grave doubts A whether any action could be maintained for an alleged disparagement of another's goods, merely on the allegation that the goods sold by the party who is alleged to have disparaged his competitor's goods are better either generally or in this or that particular respect than his competitors' are. Of course, I put aside the question (it is not necessary to consider it) whether where a person intending to injure another, and not in exercise of his own trade and vaunting his own goods, has maliciously and falsely disparaged the goods of another, an action will lie; I am dealing with the class of cases which is now B before us, where the only disparagement consists in vaunting the superiority of the defendant's own goods. In Evans v Harlow, 5 Q.B. 624, Lord DENMAN expressed himself thus: 'The gist of the complaint is the defendant's telling the world that the lubricators sold by the plaintiff were not good for their purpose, but wasted the tallow. A tradesman offering goods for sale exposes himself to observations of this kind, but it is not by averring them to be 'false, scandalous, malicious and defamatory 'that the plaintiff can found a charge of libel upon them. To decide so would open a very wide door to litigation, and might expose every man C who said his goods were better than another's to the risk of an action.' My Lords, those observations seem to me to be replete with good sense.'

And at p. 165, Lord HERSCHELL, said:

'Just consider what a door would be opened if this were permitted. That this sort of puffing advertisement is in use is notorious; and we see rival cures advertised for particular ailments. The Court would then be bound to enquire, in an action brought, whether this ointment or this D pill better cured the disease which it was alleged to cure - whether a particular article of food was in this respect or that better than another. Indeed, the courts of law would be turned into a machinery for advertising rival productions by obtaining a judicial determination which of the two was the better. As I said, advertisements and announcements of that description have been common enough; but the case of Evans v Harlow, 5 Q.B. 624, was decided in the year 1844, somewhat over a half a century ago, and the fact that no such action - unless it be Western Counties Manure Co v Lawes Chemical Manure Co., L.R. 9 Ex. E 218 - has ever been maintained in the Courts of Justice is very strong indeed to show that it is not maintainable . . .'

In my respectful opinion, those are sound and cogent reasons for applying a similar principle to South Africa, where too, so far as I have been able to discover, no case has been reported which was based on a puffing advertisement.

F There is in the English Law a qualification of the rule, which is stated as follows in Gatley on Libel and Slander, 6th ed., sec. 321:

'But where a trader does not limit himself to a comparison of his goods with those manufactured by another trader and a mere statement that they are inferior to his own, but makes some untrue statement of fact about his rival's goods - for example, states that they are rotten or contain deleterious ingredients - an action on the case will lie, on proof that G such statement was published maliciously and (save in cases falling within the provisions of the Defamation Act 1952, sec. 3 (1)) that special damage has ensued.

'The general position in law is: comparison - yes; but disparagement - no.' (per HODSON, L.J., in Cellactite & British Uralite v Robertson, The Times, July 23rd, 1957 (C.A.).'

There can be no doubt, on the authority of Fichardt's case, and subsequent cases, that such statements would also be actionable in our law.

H Annexure 'A', which was the letter sent by Brennan to advertising agents, reads as follows:

'As you know only too well there have been considerable changes in the Bantu publishing...